WAQAR AHMAD SETH, J.---Jamshad Khan Petitioner herein, being aggrieved and having no other efficacious remedy has directed this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the prayer of his release on bail till the final disposal of the reference.
2. We have heard learned counsel for the parties and perused the available record.
3. It is pertinent to mention here that on merits as well as on the ground of statutory delay, the plea for bail has been declined by this Court vide writ petitions Nos, 2431-P of 2015 and 3494-P of 2016, dated 26.1.2016 and 21.3.2017, so merits of the case needs no discussion.
4. Perusal of record suggests that petitioner along with co-accused had started business in the name of "Life Medicine Company Trader" (LMC) at Doaba, District Hangu, and allegedly cheating/ looted general public by collecting money from them on the pretext of "Mudariba" business and had received Rs, 3.158 billion, against which the respondents-NAB initiated inquiry which was subsequently culminated into investigation and filing of reference No,02/2014 before Competent Court of law. On 28.3.2015, petitioner filed writ petition No, 999-P of 2015, for ad-interim pre-arrest bail before this Court which was declined on 2.6.2015 and after 28 days of the earlier writ petition writ petition bearing No, 2431-P of 2015, for post arrest was filed, which met the same fate vide order dated 26.1.2016. After codal formalities supplementary reference was filed against the petitioner and he was charge sheeted on 13.4.2016 to which he pleaded not guilty and claimed trial and during trial petitioner moved yet another writ petition bearing No, 3494-P of 2016 for bail on the ground of statutory delay, which was also dismissed on 21.3.2016, however, learned trial Court was directed to conclude the trial as early as possible but not later than two months from the date of receipt of order/judgment.
5. Record shows that in all there are 296 prosecution witnesses which are to be examined in due course of law and this Court while declining bail to the petitioner on 21.3.2017, directed the leaned trial Court to conclude the trial within two months, but record suggests that up till now only eight out of 296 prosecution witnesses have been examined, which shows the pace of trial. In the instant reference seven accused have been nominated for the offence and keeping in view the pace of trial and number of accused, it would consume sufficient long time, therefore, keeping the petitioner behind the bars for indefinite period wouldn't be in the interest of justice and fair play.
Perusal of order sheets of learned trial Court suggests that on number of occasion/ dates, either the prosecution witnesses were not in attendance or the dates have been adjourned on one and other pretext. The Hon'ble Apex Court in the case of Himesh Khan v. The National Accountability Bureau (NAB), Lahore and others (2015 SCM R 1092), has held that: "An accused person cannot be left at the mercy of the prosecution to rotten in jail for an indefinite period. The inordinate delay in the conclusion of trial of detained prisoners cannot be lightly ignored provided it was not caused to any act or omission of accused. In the case of The State v.
Syed Qaim Ali Shah (1992 SCMR 2192), the accused was facing charges under the Suppression of Terrorist Activities (Special Courts) Act (XV of 1975) where under section 7 thereof grant of bail even in bailable offences was taken out of the discretion of the Court, however, it was held that despite of exclusion clause beneficial provision of section 497, Cr.P.C. can be pressed into service in some other genuine and rare cases to provide relief of grant of bail to a highly deserving accused, incarcerated in prison for a longer duration".
Similarly, the Hon'ble apex Court in the case of Muhammad Jameel Rahi v. D.G. NAB and others (2012 SCM R 552), has held that: "S. 9(a) (ix) & (b)---Cheating members of public at large---Bail, grant of---Delay in conclusion of trial--Accused who started his career as a school teacher and when arrested was an Assistant Education Officer, was behind the bars for the last more than 28 months and during that period, out of 416 prosecution witnesses only 150 witnesses had been examined and conclusion of trial in near future was not in sight---Effect---Nothing was available on record to indicate that accused was in any manner, responsible for the delay nor it had been alleged by prosecution---Bail was allowed".
6. In view of the dicta laid down by the Hon'ble apex Court in the judgments (supra), the case of petitioner is arguable for the purpose of bail and he is entitled to the concession of bail on the ground of delay in conclusion of trial.
7. Consequently, this Writ Petition is allowed and the petitioner is admitted to bail provided he furnishes bail bond in the sum of Rs, Ten Millions with two sureties each in the like amount to the satisfaction of learned trial Court, who shall ensure that the sureties must be local, reliable and men of means.
8. Above are the reasons of our short order of even date.